FTC crashes FCC party in threats against Big Tech for censorship in tug-of-war with Europe, Brazil

Like a child custody battle in a throuple, U.S. tech companies are getting pulled in three directions as the Trump administration abandons its predecessor's tacit tolerance, if not always explicit approval, for official censorship in the European Union and Brazil.

The Federal Trade Commission joined the Federal Communications Commission in pressuring Big Tech to back off content moderation that allegedly suppresses conservative speech and challenges to establishment narratives compared to other speech, an evolution of the agencies' history of turf wars on internet policy issues.

President Trump issued another sweeping executive order Friday that includes investigating and countering U.K. and EU policies that may have "the effect of requiring or incentivizing the use or development" of U.S.-made products and services "in ways that undermine freedom of speech and political engagement or otherwise moderate content."

Trump Media and Technology Group, home of the president's Truth Social, and video platform Rumble also got a reprieve from a federal court in their lawsuit against Brazilian Supreme Court Justice Alexandre de Moraes for his censorship orders.

U.S. District Judge Mary Scriven, nominated by President George W. Bush, ruled that Moraes didn't follow the Hague Convention or the countries' Mutual Legal Assistance Treaty in issuing his orders, so the plaintiffs didn't need a temporary restraining order to stop him.

"Censorship by technology platforms is not just un-American, it is potentially illegal," the FTC said, issuing a request for information that seeks public comment on consumer harm from "potentially unfair or deceptive acts or practices, or potentially unfair methods of competition," and specifically input from "current and former employees of technology platforms."

It asks for circumstances under which platforms have shadowbanned and demonetized users based on their speech and affiliations, what their "public-facing representations" said about moderation and whether users could appeal sanctions, what influenced such adverse actions and how they may have been enabled by lack of competition or weakened competition.

"Tech firms should not be bullying their users" into silencing themselves based on viewpoint, said FTC Chairman Andrew Ferguson, who was first appointed to the commission by President Biden and confirmed by the Senate less than a year ago.

Roughly 1,000 comments had already been filed by Wednesday afternoon in a proceeding that runs through May 21, many without real names and either critical of the proceeding or implying President Trump and X owner Elon Musk are the real threat to free speech. 

"The Trumpsters are censoring our ability to say Gulf of Mexico, he//him, etc.," commenter "Andrew Ferguson" wrote, referring to Trump's tiff with the Associated Press over the renamed "Gulf of America" and reported ban on federal employees listing their gender pronouns.

It appears to be the Trump FTC's first confirmed shot across the bow at Big Tech, arriving late to the party started by cell tower-climbing FCC Chairman Brendan Carr, dubbed a Trump "sycophant" by House Judiciary Committee Ranking Democrat Jamie Raskin for reinstating complaints against broadcast networks for their election coverage decisions including editing.

Less than two weeks after the election, Trump-nominated Commissioner Carr said the "censorship cartel" that silenced Americans, with help from an "Orwellian" purported fact-checker, "must be dismantled and destroyed." 

In letters to Google and Facebook parent companies as well as Microsoft and Apple, Carr said their work with NewsGuard, a rating system for news and information websites, might not be in "good faith," the condition for legal immunity under Section 230 of the Communications Decency Act.

Apple also has to fend off increasing attacks from conservative rabble-rousers.

It defeated four resolutions at its annual shareholder meeting this week including transparency on how it fights child sexual abuse material and its relationships with activists such as the Human Rights Campaign, which requires companies to pay for so-called gender affirming care for minors to perform well on its Corporate Equality Index.

The Alliance Defending Freedom, which helped lead the shareholder efforts, called it a win because "this is the beginning of a conversation," in the words of Senior Vice President of corporate engagement Jeremy Tedesco. 

"Apple has budged" in response to their resolution against diversity, equity and inclusion "and I think there's more budging to be done," Bowyer Research President Jerry Bowyer said, noting that Apple CEO Tim Cook suggested that legal changes may force it to recant DEI.

The FCC's Carr is a long-term skeptic of the breadth of Section 230 immunity as determined by courts, cheering President Biden's interest in "removing Big Tech’s special Section 230 protections" in 2022 while suggesting ways to avoid "encouraging even more censorship."

New York Post business columnist Charles Gasparino said investors should prepare for Big Tech stocks tanking if Carr's "inchoate" plan for Section 230 regulatory review gets fleshed out as an advisory opinion that weakens or eliminates the liability shield on the grounds that platforms are no longer "blind arbiter[s] of information."

Gasparino sees a "good chance" many courts, especially with conservative jurists, will rely on FCC guidance in Section 230 cases, giving new life to defamation claims against Big Tech, granting expensive legal discovery and prompting settlements.

The columnist buttressed his take by pointing to Section 230 caselaw in Silicon Valley's 9th U.S. Circuit Court of Appeals, which most recently stripped immunity from Facebook in a class-action lawsuit against its algorithm discerning users' protected characteristics and letting advertisers discriminate in whom they target with housing ads based on those characteristics.

Carr confirmed Big Tech scrutiny will be a hallmark of his chairmanship by hiring law professor Adam Candeub, long a vocal critic of Section 230 as interpreted by courts, as general counsel of the agency, the position Carr held before his elevation to commissioner. 

Carr also praised Trump's nomination of ex-FTC lawyer Gail Slater, onetime policy chief for the since-disbanded Internet Association, as Justice Department antitrust division chief, who will "help rein in Big Tech and put an end to their abusive and anticompetitive practices." 

The FTC and DOJ have their own history of turf wars, and Ferguson told staff last week he wanted the two "singing from the same song sheet" when it comes to merger reviews. He said it's better to keep the Biden administration's joint 2023 guidelines rather than spark a "recriminatory cycle of partisan rescissions" that harm business and confuse courts.

The first-month moves by the Trump-appointed chairmen coincide with the president's Feb. 18 executive order to exert more control over the FTC, FCC and Securities and Exchange Commission, which the order calls "so-called independent agencies" whose economy-straining rules and regulations have long escaped direct presidential review.

One of the final acts of President Biden's FTC was then-Chair Lina Khan reportedly consulting with Chinese online retailer Temu about Amazon's pricing policies. The FTC is suing Amazon for its discounts but has resisted demands to investigate Temu for unfair trade practices.